Former Solicitor General William Marshall Bullitt was a graduate of the UofL Law School and a leading louisville attorney.  His portrait hangs prominantly in the school's stairwell.  Local attorney will discuss Bullitt's life in "Oxmoor’s William Marshall Bullitt" on Sunday, March 15 - 2 p.m at Oxmoor (call the Filson Historical Society at (502) 635-5083 for more details. 

From the Filson Society:

"Louisville’s William Marshall Bullitt (1873-1957) was a lawyer of national prominence who used his skills as attorney and mathematician to win huge cases before the Supreme Court. As a young man he served as President Taft’s solicitor general, representing the federal government in all of its cases before the Supreme Court. After inviting himself to the Hiss trials, Bullitt’s courtroom antics brought international attention."

"Bullitt built a library containing more than 10,000 volumes at his home on the Oxmoor farm outside Louisville. In his collection were priceless publications of the seminal works on mathematics and astronomy. This interest kept Bullitt in contact with his many prominent friends."

"Retired Louisville lawyer Mark Davis will tell us about Bullitt’s interesting life rebuilding the 1170 acre Oxmoor Farm, about his keen detective-investigator instincts, about the many lawyers with whom he associated, about the local institutions he controlled, and about an unusual burglary from Oxmoor’s wall safe."

"There is no cost for this event though reservations are requested."

Just when I thought that the Kentucky General Assembly was going to cruise through to the end of the session without passing any laws that raised interesting legal issues under the state or federal constitutions, the last couple of weeks have produced three passable bills that may end up in the courts on such grounds.

The first proposal of interest is jointly proposed by Senate leader David Williams (R-Burksville) and House Speaker Greg Stumbo (D-Prestonsburg) and seeks to create a powerful legislative investigative organ under the Legislative Research Commission (LRC). The plan, embodied in Senate Bill 188 & House Bill 540, appears to raise several issues.  The press and Common Cause are concerned with language exempting the agency records from open records laws and court subpoenas.    While the good government groups may be  rightly concerned as to this lack of transparency, there doesn't seem to be a readily apparent constitutional issue here.  However, the provision commanding the assistance of the attorney general and state auditor-both constitutional officers-may violate the separation of powers provisions of the state constitution. (Stumbo has suggested that he is considering dropping this section).  A knottier question involves the powers delegated to the LRC. They appear to run afoul of language in the leading case on the separation of powers and the limits of the legislative power, LRC v. Brown, 664 S.W.2d 907 (Ky. 1984).  In Brown, the state Supreme Court opined  that the admittedly vast powers of the legislative branch were nonetheless extinguished when it adjourned sine die and found that the LRC could not be used as a mechanism to extend them. 

Another bill that would likely be challenged is the new executive agency ethics law, just approved by the Senate and under consideration in the House.  Among a mix of worthy and petty provisions, one section of Senate Bill 2 bars anyone giving $50 or more to a gubernatorial candidate from doing business with Kentucky state government for 18 months. (The law does not apply to campaign contributions to legislators--must be a typo). Ending any hint of pay-to-play on behalf of road contractors might be a great idea, but it could be argued that setting such a small amount as the trigger is an impermissible restriction of a citizen's free-speech rights under the U.S. Constitution. See Randall v. Sorrell, 548 U.S. 230 (2006).

Senate Bill 187, sponsored by Sen. Dan Kelly (R-Springfield), perhaps raises the most straight forward constitutional issues.  It would give the legislative branch a veto over the governor's executive orders. Those orders of the governor deemed to involve policy would have to be ratified by the legislature by enactment in its next scheduled session or else they will expire.  This law appears to be a bold violation of the separation of powers provisions of the Kentucky constitution. 

Section 27 defines the separation of powers:  "The powers of the government of the Commonwealth of Kentucky shall be divided into three distinct departments, and each of them be confined to a separate body of magistracy, to wit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another." Section 28 prohibits the intrusion of one branch into the powers of another: "No person or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the other." 

Besides meddling in the acts of another branch, the bill also depends on what could be argued to be a defective exercise of the legislative power. If the legislative branch wants to negate a gubernatorial policy, the constitution provides the method: it can pass a properly framed law through both houses and override the governor's veto.  The bill, however, has the legislature setting state policy by not acting.  Neat trick.

Illustration: Roman statue of Aristotle, first political philopher to outline the benefits of the separation of powers doctrine.

As many know, the current University of Louisville has absorbed the history, alumni and traditions of the many Louisville institutions that it merged with over the years.  Among these institutions was the Jefferson School of Law, which was founded in 1905 to provide legal education at night and weekends to working-class Louisvillians.  Its early boosters were Benjamin F. Washer, Judge Shackelford Miller and, the subject of today's legal ephemera, Circuit Judge Thomas R. Gordon, who served as the school's dean in the late teens and throughout the 1920s.

Gordon, a Democrat, was elected to the Jefferson County Circuit Court in 1902 and served in that capacity until his death in 1929.  Gordon's parents were both born in Georgia, but had settled in Owingsville, Kentucky by the time that young Thomas was born in 1854.  I have not yet ascertained details of his early education, but in 1890 he joined with University of Louisville graduate John C. Strother (class of 1869), a Trimble County native, to form the extremely successful partnership, Strother & Gordon. The firm, which was dissolved by neccesity upon Gordon's election, had among its clients such prominent institutions as the Mutual Life Insurance Company of Kentucky and the Louisville Title Company.

After his election in 1902, the voters faithfully returned Gordon to office until 1929, when he died of a stroke, complicated by heart disease.  (At this time, death did not prevent a good Democrat from voting; it was, however, a more severe impediment to standing for office).  Judge Gordon was buried among his constituents in Cave Hill Cemetery.

The item reproduced is a campaign calling-card of a type widely used in elections in Kentucky during this era. The obverse (shown left; click for larger version) has a simpler message, using the long-time symbol of the Kentucky Democracy, the proud rooster.  In the lever-action voting booths of my youth, this symbol (along with the Republican log cabin) clearly marked the switch one flipped to vote the straight ticket.

For additional information:

Cox, Dwayne, and William James Morison. The University of Louisville. Lexington, Ky: University Press of Kentucky, 2000.

RALE 1.3.  (Photos linked to flickr entry).

I hesitate to write on yet another possible commerce secretary, but CNN is reporting that President Obama is planning to appoint yet another lawyer to the post, former Washington Governor Gary Locke, a 1975 graduate of the Boston University School of Law.  Locke, a Chinese-American, will add additional ethnic (if not occupational) diversity to the cabinet.  He is currently associated with the international law firm, Davis Wright Tremaine LLP; the law firm's connections with China could be an issue in his confirmation hearings.

Official biography as Washington Governor | Wiki bio | DWT bio

With the ProBowl underway it is appropriate to post a 1978 trading-card for Hall of Fame defensive tackle Alan Page. Page is (with U.S. Supreme Court Justice Byron “Whizzer” White) perhaps one of the two great “two-sport” (football and law) players to ride a judicial bench.  White may have reached a higher pinnacle (for now), but the Colorado-born running back’s three NFL seasons cannot compare with Page’s reign as one of the greatest defensive players of all-time.

Page began his career winning a national championship ring in 1966 for Notre Dame. He anchored the Minnesota Vikings famed “Purple-People Eaters” defense in the 1970s, in 1971 becoming the first defensive player to be named as MVP. He was voted to nine consecutive Pro Bowls, 1969-1977 and in 1988 the Canton native joined the Football Hall of Fame.

At the same time he was flattening offensive backs in the autumn, he was attending law school in the spring.  In 1978, Page graduated University of Minnesota Law School and joined the law firm of Lindquist and Vennum.  In 1992, Page was elected to as Associate Justice of the Minnesota Supreme Court, becoming the first African-American to join the state’s high court. He was re-elected in 1998 and 2004.  This year, Page was asked to choose the three-judge panel deciding the election dispute involving Minnesota’s U.S. Senate seat.  Page has been suggested (at least by bloggers) as a possible appointee to the U.S. Supreme Court.

This is the first issue of an occasional feature I call the Repository of American Legal Ephemera, where I’ll pull an item from my motley of legally oriented artifacts, mostly printed but once and a while something more three-dimensional, and show it along with a few sentences (or more) about its context.  Readers of this blog will not be surprised; I’ve already featured a 1960s era flyer from a Jefferson County (Ky.) judicial race, a poster of an Eastern Kentucky magistrate candidate with a penchant for poodles, and an Illinois political button rendered ironic by time.

Maurice Rickard, author of several works on the phenomenon, defined ephemera as the "minor transient documents of everyday life."  Tickets, flyers, broadsides, advertisements, identification cards, these are the butterflies for the ephemera-collector's net.  Librarians and curators tend to limit the category to nonbook print materials, using the term realia for artifacts, but I like Rickard's definition because it reflects the most interesting quality of most ephemera--their immediacy and single-mindedness.  A ticket is to keep out gate-crashers, an advertisement to promote Saturday's sale.  When the ball game is over and the furniture is sold, the ticket is dropped on the floor and the ad is thrown away.  Except one or two survive and (unwittingly to the item's makers) these fragile bits of paper become windows into that moment in time.

This week’s entry is a button from Judge Janice Martin’s first campaign.  Janice Martin was appointed to the Jefferson District Court Bench in March 1992 by Governor Brereton C. Jones, becoming the first African- American woman to join the Kentucky judiciary.  She was later elected to the bench in November 1992 in a campaign in which the following button was distributed to supporters. (As I recall, I picked it up one evening when I joined several fellow law students to staple together a huge batch of yard signs  in Judge Martin’s basement).  Martin received her B.A. in 1977 and her J.D. in 1980 from the University of Louisville. Sadly she, along with colleague Toni Stringer, retired to the senior status program in early 2009, leaving Jefferson County (which is 19% black) without an African American on its judicial bench. (This could be remedied by Governor Beshear who must name her replacement).

The watch for lawyers in the Obama administration appears to never end.  Just when I'm ready to post that Sen. Judd Gregg (R-N.H.),who received his J.D. in 1972 and a L.L.M. in tax law in 1975 from Boston University Law School, has accepted an nomination as Secretary of Commerce, former Sen. Tom Daschle drops out as head of HHS--leaving an opening for yet another legally trained cabinet member.

Among the possible replacement candidates is Obama transition team co-chair and former Clinton chief-of-staff John Podesta, a 1976 graduate of the Georgetown University Law Center.  As is pointed out in a Bloomberg News article analyzing Obama's options, while there are many candidates capable of running HHS, Podesta may to the only one with the political skills and personal connections to replace Daschle as the point-man to get a major health-care reform through Congress and onto the president's desk.

As you watch the events leading up to the historic swearing of Barack Obama as president, I’d suggest pointing your web browser to the Library of Congress American Memory digital exhibit, “I Do Solemnly Swear”: Presidential Inaugurations.  In addition to the text of all the inaugural addresses (provided by Avalon Project at the Yale Law School), there are "diaries and letters of presidents and of those who witnessed inaugurations, handwritten drafts of inaugural addresses, broadsides, inaugural tickets and programs, prints, photographs, and sheet music."

The bible that Lincoln used at his first inaugural; will be used to swear in President Obama. Library of Congress

Chicago Public radio station WBEZ has posted Illinois Senate appointee Roland Burris's letter of appointment from Gov. Rod Blagojevich and the letter confirming the appointment's authenticity from Secretary of State Dexter White.   This follows the Illinois Supreme Court's ruling that despite the governor's legal troubles--federal indictment, impeachment, etc.--the appointment was valid.  Recent reports suggest that this should satisfy the Senate although new legal developments could slow seemingly inevitable Burris' effort to be promptly seated.

This being the blog of a law librarian, not "an old trial lawyer," here are links to all the legal documents cited so far in this curious case:

1.  The Seventeenth Amendment (Amendment XVII) to the United States Constitution.
“When vacancies happen in the representation of any State in the Senate, the executive authority of each State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.”

2.  Standing Rules of the Senate, Rule II: Presentation of Credentials and Questions of Privilege
“II. 2. The Secretary shall keep a record of the certificates of election and certificates of appointment of Senators by entering in a wellbound book kept for that purpose the date of the election or appointment, the name of the person elected or appointed, the date of the certificate, the name of the governor and the secretary of state signing and countersigning the same, and the State from which such Senator is elected or appointed.”

3.  Illinois Code.  United States Senators. 10 ILCS 5/25-8.
“When a vacancy shall occur in the office of United States Senator from this state, the Governor shall make temporary appointment to fill such vacancy until the next election of representatives in Congress, at which time such vacancy shall be filled by election, and the senator so elected shall take office as soon thereafter as he shall receive his certificate of election.”

4. Ill. Const. 1970, art. V, §16.
“The Secretary of State shall maintain the official records of the acts of the General Assembly and such official records of the Executive Branch as provided by law. Such official records shall be available for inspection by the public. He shall keep the Great Seal of the State of Illinois and perform other duties that may be prescribed by law.”

5. Illinois Code.  Secretary of State Act. 15 ILCS 305/5
“[i]t shall be the duty of the Secretary of State:
1. To countersign and affix the seal of state to all commissions required by law to be issued by the Governor.
2. To make a register of all appointments by the Governor, specifying the person appointed, the office conferred, the date of the appointment, the date when bond or oath is taken and the date filed. If [State] Senate confirmation is required, the date of the confirmation shall be included in the register.”

6.  Burris v. White, Supreme Court of Illinois, No. 107816 (01/09/2009)
“Because the Secretary of State had no duty under section 5(1) of the Secretary of State Act (15 ILCS 305/5(1) (West 2006)) to sign and affix the state seal to the document issued by the Governor appointing Roland Burris to the United States Senate, Petitioners are not entitled to an order from this court requiring the Secretary to perform those Acts. Under the Secretary of State Act, the Secretary’s sole responsibility was to register the appointment (15 ILCS 305/5(2) (West 2006)), which he did. No further action is required by the Secretary of State or any other official to make the Governor’s appointment of Roland Burris to the United States Senate valid under Illinois law.”